MONCURE, J.

1. The sureties of a deputy in his bond to the high sheriff for the faithful discharge of his duties, are estopped thereby from denying that their principal was deputy, unless the bond is invalid.

2. The bond of the deputy is not avoided by the fact, that the County court did not enter of record that he was a man of honesty, probity and good demeanor; and that he did not take the several oaths required by law to be taken by deputy sheriffs.

3. Upon a motion by a high sheriff against a deputy and his sureties, they file a special plea; and the plaintiff replies specially, and relies on the facts therein stated and especially on the bond as an estoppel; though the replication has not the peculiar commencement and conclusion of a pleading by way of estoppel. A demurrer to the replication should not be sustained.

This was a supersedeas to a judgment of the Circuit court of Pulaski, overruling the motion of John G. Cecil, sheriff of that county, against his deputy, Samuel Early, and his sureties, for judgment and award of execution for the amount of a judgment rendered against the sheriff for the default of the deputy. The notice was in due form, and was founded on 1 Rev. Code 1819, ch. 78, § 33. The defendants offered two pleas in bar, which were received; and which, in substance, were: 1st. That at the time of committing the default aforesaid, Early was not the legally qualified deputy of Cecil in this, that the court of Pulaski did not at the March term thereof in the year 1844, or at any time thereafter, enter of record that said Early was a man of honesty, probity and good demeanor; and he was not then, or at any time thereafter, permitted to take, and did not take, the several oaths required by law to be taken by a deputy sheriff: And 2dly. That the sale of the slave, which was the cause of action for which said judgment was obtained, was not made by said Early. To the first plea the plaintiff filed a special replication, to which the defendants demurred generally; and to the second plea the plaintiff replied generally. The special replication in substance stated that Cecil was duly commissioned, and qualified as sheriff for two successive years from March 1843. That Early was appointed by him and acted as his deputy for both years, and duly qualified for the first; and gave bond with the other defendants as sureties, dated the 7th of March 1844, conditioned, among other things, that Early would well and truly execute the office of deputy sheriff; and save the plaintiff harmless from all liabilities which might be incurred by the acts of Early during the second year: And it vouched the records referred to, and made profert of the bond. The demurrer was argued; and the court, after taking time to consider thereof, overruled the motion, without taking any notice of the second plea; it being unnecessary to try the issue made up on that plea after the demurrer had been sustained, as was in effect done by overruling the motion.

Floyd, for the appellant.

It is too late for the defendants to deny that Early was deputy to the plaintiff. They admit it under their hands and seals, and are estopped by the deed.

It is not incumbent upon the appellant to show that his deputy renewed his oath of office upon his continuing to hold it. It is admitted he took the necessary oaths when first appointed; and it would be difficult to define the period when it ceased to be obligatory whilst he continued to act as deputy. Lane v. Harrison, 6 Munf. 573; Royster v. Leake, 2 Munf. 280.

It is said for the defendants, this case arises under the provisions of the act of 1819; 1 Rev. Code 279, § 15; and, therefore, does not come within the principle settled by the case of Lane v. Harrison, which arose under the act of 1792. See 1 Rev. Code (ed. 1803,) p. 121, § 12, which provided that deputies should not serve longer than " two years in any period of four," unless they proved to the satisfaction of the court that they had paid the public dues for the two years. By the same law, § 6, the appointment of sheriff was from year to year. Both were required to take an oath of office, the sheriff and his deputy. Id. p. 55. Yet it was decided in the case above referred to, that, in an action by the sheriff against his deputy, it was unnecessary to show that the deputy took the oath of office the second year.

The addition made to the statute of 1792, by the act of 1819, does not change the liability of the deputy to his principal: it only subjects him to a penalty for acting without taking the oaths prescribed by law: it does not make his acts, as such, either void or voidable.

W. R. Staples and B. R. Johnston, for the appellees.

The case at bar arises under the provisions of the act of 1819, 1 Rev. Code of 1819, p. 279, § 15; and, in our view, is entirely unaffected by the cases of Royster v. Leake, 2 Munf. 280, and Lane v. Harrison, 6 Munf. 573, cited by appellant's counsel. Those cases were governed by the terms of the act of 1792. See old Rev. Code, p. 179, § 12; a wholly different statute. This latter act permitted a deputy sheriff to act two years upon one nomination and appointment; a provision first introduced in the act of 1772, which limited the service of any one in that office to two years, unless by permission of the court. As the law stood prior to the act of 1819, the deputy might qualify for the whole official term of two years. It was unnecessary for him to come into court and qualify anew upon the expiration of the first year.

The act of 1819 changed all this, and provided " that no person thereafter appointed should perform any of the duties of deputy sheriff, unless the court of the county were of opinion, and so entered of record at the time of his appointment, that he was a man of honesty, probity and good demeanor; nor shall he perform any of said duties until he shall have taken, in open court, the oath of office, and the other oaths prescribed for public officers." We regard this provision as conclusive in the cause. We apprehend that inasmuch as such entry of record of the good character of the person nominated to the court for its approval was an indispensable prerequisite to his taking the oaths of office; and as the record does not show that such entry was made or such oaths taken, things required by law to appear of record, that, therefore, the said Early was not and could not be the deputy sheriff of the appellant. Under this law, the mere nomination by the high sheriff does not constitute his nominee a deputy sheriff. He is only such when the requisitions of the statute have been fully complied with. These are matters of record, and can alone be properly proved by record. That is the best evidence, and nothing short of it is admissible. The idea that we are estopped, (by the bond which we executed in contemplation of the appellant's complying with the terms of the law,) from alleging, and from proving by yet higher evidence, that Early was not the deputy of the appellant after the expiration of the first year, we consider altogether unsound. But even if there were anything in the objection, it is too late to urge it here: The appellant should have replied, relying on the estoppel. It is clear, however, that the execution of the bond did not constitute Samuel Early a deputy sheriff. To do that, required the concurring acts of the high sheriff and the court, and that S. Early should take the oaths of office. These things were not done. Early did not become legally a deputy sheriff. Not being such his acts were done in his private capacity, and not as a public officer. It was only for acts done in the latter capacity that the appellees bound themselves to be responsible.

MONCURE, J., after stating the case, proceeded:

The question for our decision is, Did the Circuit court err in sustaining the demurrer?

I am of opinion that it did. The special replication neither traverses, nor confesses and avoids the matter of the first plea; but relies on the facts therein stated, and especially the bond, as an estoppel. It has all the substance, but not the peculiar commencement and conclusion of a pleading by way of estoppel. If the facts stated in a replication, although it may have an informal commencement or conclusion, constitute a legal bar to the matter of the plea, a general demurrer thereto ought to be overruled. This would be the case in a common law action; and is a fortiori the case in a summary motion, in which the pleadings may be ore tenus, and the court may pronounce judgment on the evidence. McKinster v. Garrett, 3 Rand. 554. The pleadings in a motion are sometimes in writing; but in such cases less strictness is required than in common law actions, and an objection that the issues on the pleadings are not formally joined will have no weight. Id. The court may itself try the issues, although of fact, or call in a jury for that purpose, at its discretion. Burke, adm'r, v. Levy's ex'or, 1 Rand. 1; 1 Rob. Pr. 600.

Then, do the facts stated in the replication constitute a good bar or estoppel to the matter of the plea? The bond bears date on the 7th of March 1844, the day on which the sheriff qualified; recites that Early had that day qualified as deputy; and is conditioned, among other things, for the faithful execution of the duties of the office of deputy sheriff, and for the indemnity of the sheriff against all liabilities incurred by the acts of the deputy. This is a solemn admission by deed of Early and his sureties, that he was the deputy from and after the 7th of March 1844; and clearly estops them from denying the fact unless the bond is void as being in contravention of the act of 1819, 1 Rev. Code 279, § 15, which declares that no person who shall be appointed to the office of deputy sheriff of a county, shall execute any of the duties of the office unless the court of such county shall be of opinion and enter of record at the time of his appointment, that he is a man of honesty, probity and good demeanor; nor until he shall have taken in open court, the oath of office and the several other oaths prescribed by law for public officers; and if he shall presume to do so he shall forfeit and pay to the commonwealth, for the use of the literary fund, a fine of one thousand dollars.

I do not think that the validity of the bond is at all affected by this act, or the supposed failure of the deputy to comply with its requisitions. If the bond had been executed for the purpose of enabling the deputy to violate the act, and the sheriff had participated in or been apprised of that purpose when the bond was executed, the case might have been different. But it is not pretended that he did so participate, or was so apprised. Indeed it is not pretended that there was any purpose on the part of the deputy to violate the law; and if its requisitions were not in fact complied with, I presume, in the absence of averment and proof to the contrary, that the omission arose from mistake or inadvertence. However this may be, Is the sheriff who is innocent, to lose the benefit of the bond, because the deputy failed to comply with the law? Will the deputy be allowed to take advantage of his own wrong? To escape the consequences of a violation of his bond by showing that he violated also the requisitions of the law? The act, in its terms, imposes no duty upon the sheriff in this respect. Its requisitions are made of the deputy, and its penalty is laid alone on him.

The office of sheriff in Virginia for many years preceding the present constitution, was considered as a reward, and was the only reward of the justices for their public services. They seldom performed the duties of the office in person, but sold its deputation to others; and such sale, by a judicial construction of the proviso to the statute against selling offices, was decided to be legal; Salling v. McKinney, 1 Leigh 42; and in the new Code is expressly excepted from the prohibition therein contained. Code, p. 85, § 5 and 6. The general, and almost universal, practice was, that the person to whom the deputation of the office was sold, not only executed a private bond with surety to the sheriff, but furnished the sureties in the bonds of the sheriff, and attended to all the details of the qualification both of the sheriff and his deputies. The former rarely did more than sign the public bonds and take the oaths of office; trusting the rest to the person to whom he had deputed the office, and from whom he had received ample indemnity. If, from design or inadvertence on the part of the deputy, and without the knowledge of the sheriff, there was any irregularity in the qualification of the former, or a failure to comply with any of the requisitions of the law in regard thereto, would he be allowed to avoid the obligation of his bond by pleading such irregularity or failure on his part? I think not; and as the case under consideration is such a case, I therefore think the bond is a good estoppel of the matter of defence set up in the first plea. On the subject of estoppels by bonds, see Cox and others v. Thomas' adm'x, 9 Gratt. 312, and cases therein cited.

I also think that the case of Lane v. Harrison, 6 Munf. 573, relied on by the counsel for the plaintiff, shows that such a defence cannot be made under such circumstances. It is true that that case occurred prior to the act of 1819; but the counsel for the defendants are mistaken in supposing that, as the law then was, a deputy might qualify for an official term of two years, and that it was unnecessary for him to qualify anew upon the expiration of the first year. In the case of The Commonwealth v. Fairfax, 4 Hen. & Munf. 208, it was decided that though a person might be continued in the office of sheriff for two successive years, an annual nomination, appointment and bond were necessary; and that the words, " during his continuance in office," inserted in the bond executed the first year, had reference to the actual duration of the office by virtue of the appointment under which the bond was taken. In the case of Munford v. Rice, 6 Munf. 81, the same words in the bond of the deputy executed the first year, received the same construction, and were limited to that year. The case was considered as falling within the principles of that of The Commonwealth v. Fairfax, and as not coming within the decision in Royster v. Leake, 2 Munf. 280, in which the condition of the bond stated that the deputy was to act as such until Goochland November court 1804: And that stipulation was considered as added to, and extending the expression " " during his continuance in office," beyond the year for which his principal was first appointed; and which, in this private contract between the sheriff and his deputy, it was competent for them to do. See the opinion of the court, pronounced by Roane, J. in Munford v. Rice. The act of 1792, which governed the case of Lane v. Harrison, and the act of 1819, which governs this case, do not materially differ from each other so far as affects the question under consideration. Each required a yearly appointment and qualification of the sheriff and the deputy. Each contained the provision (and in the same words) that no person should be capable of executing the office of deputy sheriff of any county for any longer time than two years in any period of four years, unless he should produce to the court of the county satisfactory proof of his having collected and accounted for the taxes assigned to him by his former principal. Each prohibited him from executing the duties of his office without taking the oaths prescribed by law for public officers. And the only difference was that the act of 1819 superadded an additional prohibition to those contained in the act of 1792, and imposed a penalty of one thousand dollars on any person appointed to the office of deputy sheriff, who should presume to execute any of the duties of the office before such entry of record should have been made as required, or without having taken the oaths aforesaid. If under the act of 1792, a person who had been appointed, given bond, and acted as deputy sheriff, could not avoid his bond by pleading that he had not taken any oath of office, and his appointment had not been approved by the court, as was decided in the case of Lane v. Harrison; no more, under the act of 1819, could such a person avoid his bond by pleading, as in this case, that he had not taken the several oaths required by law to be taken by a deputy sheriff, and that the court did not enter of record that he was a man of honesty, probity and good demeanor.

I think that the judgment of the Circuit court ought to be reversed, the demurrer overruled, and the case remanded to the Circuit court for further proceedings.

The other judges concurred in the opinion of Judge Moncure.

JUDGMENT REVERSED.